ICANN Open Meeting - Afternoon Session

Non-Commercial Domain Name holders
David Maher: proposal submitted by ISOC would allow founding group to elect 5 officers to handle "bootstrapping" (getting more members, electing NC members, etc.). Proposal would require no more than one NC member from a region.
Michael Sondow: Milton Mueller going to present compromise proposal that is radically different from the ICIIU's original, but ICIIU has reluctantly agreed to it.
Milton Mueller: (delivers document) The ACM Internet Governance Committee got involved in the process because they saw a race between two groups and a competition to control, rather than build, the constituency.
There was agreement between all of the groups on the goals, the membership criteria, organizational and voting principles. The sticking point is the interim arrangement. Proposed compromise is transition committee of Mueller, Sondow, Heath, and Gaetano.
Symbolic and operational justification: (1) to show that everyone who has been involved so far can be a part of this process; (2) most real players in this constituency have not been involved so far-so to use the list of people involved so far as the electorate isn't right. Need to get more support from others first.
Esther Dyson: was in the meeting and reports that Mueller's report was a fair report of what went on. Key non-commercial domain name holders weren't there; there needs to be more work done.

Registrars: Michael Palage
No waiver of geographic diversity requirement requested. Elections to be held in two weeks. Issue of inclusion of ccTLD registrars discussed on Tuesday. Going to contact ccTLD registries and find out what their requirements for regitrars are, to see if there is a fit between the definition that ccTLDs use and the definition that the constituency uses.
Focused on fair and open competition in .com, .org, and .net domain name registration process. Important because it's up to the constituency's members to fund ICANN-yet none of the participants has registered a domain name yet. Concern that NSI will not sign an accreditation contract and will therefore not contribute to funding of ICANN. This is a key issue to be addressed.

Trademark, Intellectual Property, and Anti-Counterfeiting Interests: (Jonathan Cohen)
-Series of meetings and postings of proposals on web.
-Members so far from around the world, representing intellectual property owners.
-Still interim, but have resouces to be up and running now.
-Anyone can participate in discussions.
-Interim officers and NC members elected. They are from international organizations, which are geographically diverse. Still plan to make adjustments to comply with geographic diversity requirements.
-Believe geographic diversity will be improved with membership drive.
-Welcomes participation of DNRC, also in discussions with indigenous IP constituency group.
-Will have another meeting in the next month.
           • Joop Teernstra
           • Individual Domain Name Holders Constituency Proposal. Board in Singapore recognized important role of individuals. Charter on website provides for democratic voting.
           • Preferential voting to deal with geographic diversity. Elected three spokespeople: Joop, Einar Stefferud, and ??? from New Zealand.
           • The more constituencies in the DNSO, the more stable and representative it will be. This is a genuine bottom-up effort. Believes they were approved by acclimation at the General Assembly meeting.
           • Esther Dyson: not a clear consensus. Still discussion to be had here and on the Board. Challenge is to justify existence of new constituency.
           • Joop: all of the constituencies so far represent business interests (except non-commercial one, which still has problems). Individuals in this group don't identify themselves as commercial or non-commercial. Shouldn't force people to choose-it's unpredictable how a domain name might be used.
           • As to representation within At-Large membership of ICANN-doesn't think that At-Large membership should be for pacifying people who have a stake in the DNS.
           • Esther Dyson: Does the Board have any questions?
           • Michael Schneider: don't open up the doors for new constituency here. It's a slippery slope; there are lots of other subgroups that could seek recognition.
           • George Conrades: Question for Joop. Would individual domain name holder be "transitory" before selecting commercial or non-commercial?
           • Joop: No, they just might not want to be forced to choose.
           • Mike Roberts: There's been discussion of the issue of redundant participation (in multiple constituencies). Interested in comments about that.
           • Q&A: Don Telage. Agrees with concern raised by Roberts, possibility of "stacking the deck."
           • Milton Mueller: A big issue in non-commercial. Rough consensus on interim "no double-dealing principle." If you are going to be in more than one constituency, there is a danger of a constituency becoming a battle-ground between other constituencies.
           • George Conrades: how will you get major players who aren't involved yet involved? What are the prospects, timeline?
           • Mueller: Committee called for in proposal can go out and solicit new members. Goal to make incentive of the group to get new participation.
           • George Conrades: Do you have the resources you need to go out and do that?
           • Mueller: Can only speak for ACM, which just formed the Internet Governance Committee. Planning to come up with budget, send Mueller around, have conferences, etc. Can do a lot.
           • Ken Stubbs (CORE): Concerned about ability of any one individual or organization to affect decision-making process on a numerical basis. Concerned with monopoly being able to select three names council members. NSI should be limited to one seat, with the other two held in trust for additional expansion, or any other gTLD determined at this time to qualify.
           • Esther Dyson notes there was support for this idea in Tuesday meeting too.
           • Rob Hall (Canadian Internet Registration Authority): One individual may wear different hats (representing different organizations) in different groups. That should be ok. Doesn't amount to stacking the deck necessarily.
           • Amadeu Abril i Abril: Problem is that the same people are in every group (all the same, not just one or two). Minority voices are going to every group. Real players are missing from individual and non-commercial groups.
           • Jim Higgins: deck stacking is easier when groups are small. When constituency is large, it's hard for any one group to gain control. It will be hard to stack the deck of an individual domain name holders constituency because it will be so large. Supports individual domain holders constituency. Should not just be rolled into some other area. Suggests poll of room.
           • Poll of room: should we recognize individual constituency under the current conditions. Looks like 1/3 yes, 1/3 no, 1/3 abstain.
           • Jay Fenello: One of the purposes of governance is to represent minorities. Minorities should have voice in process of setting up DNSO. ICANN Board has to ensure that gaming hasn't occurred in other constituencies. Worried about arbitrary time limits that give early adopters superior rights.
           • Esther Dyson: Board may have to coordinate proposals in terms of timing, elections, etc.
           • Javier Sola: Puzzled by proposals for non-commercial domain name holders constituency. A couple of organizations/people are saying that they have the right to tell other groups whether they can be a founding member or not (compromise proposal). And the organizations that want to be gate-keepers haven't been involved in the Internet community long. Board should say that members of the constituency should work together to form it.
           • Milton Mueller: All organizations that signed up with all of the proposals would be recognized as founding members-the committee would just be for reaching out to new constituency members. Not a gatekeeper, but a "herder."
           • Javier Sola: But why is the ACM on the committee?
           • Richard Sexton: Spokesman for TLDA (Top Level Domain Association). Representing prospective operators of new top level domains. What constituency are we supposed to go to?
           • Esther Dyson: troubling question.
           • Michael Roberts: boundaries aren't precise, we would like help and feedback about how they fit together.
           • Esther Dyson: would prefer to see constituencies go broader in order to help interests fit in. You should be in the constituency in which you have the stongest interest.
           • Richard Sexton: that would be the gTLD constituency.
           • Esther: you aren't one yet.
           • Michael Roberts and Esther Dyson: tell us what you want.
           • Richard Sexton: want to fit in somewhere!
           • Roberto Gaetano (ETSI): Re non-commercial constituency: appears that under the bylaws it is possible to go forward with only 6/7 constituencies. Wouldn't want DNSO to stop because this one is still up in the air, but also worried that interests of non-commercial won't be part of initial DNSO. Would like help from board-guidelines, time to finish organizing, etc.
           • The distance between the groups is not big-there is consensus on goals, membership principles. Can be solved in just a few days.
           • George Conrades: good to set a time limit and encourage action.
           • Mark Luker, EDUCAUSE. Believes non-commercial constituency can go forward. There is agreement on issues, debate is really just about technical questions of who runs the election. We have a solid start to go forward.
           • Rob Hall: comment on timing. Pleased that constituencies have formed so quickly. Concerned about speed of NC elections. Recommends that Board let constituencies go forward and solicit more members before elections (except maybe for interim NC members).
           • Mike Roberts: A lot of support for that view on the Board, although Board's message was ambiguous on this issue after Singapore.
           • Esther Dyson: Up to board to help things get coordinated, get people on same time line.
           • Dennis Jennings: Re general assembly. Suggests that there be more preparation before Santiago. Thus . . .
           • Hotel Unter den Linden meeting 9:00 am Thursday to organize next General Assembly meeting. Just down the street.
           • Michael Sondow: To help make progress toward formation of non-commercial constituency, it would be useful for board to state that non-commercial constituency is not a place for commercial and business interests and the people representing them.
           • David Johnson: Got sense that Dennis Jennings elected interim chair of General Assembly. Notes that there was a list of issues generated for preliminary work by the GA. Believes it is in the Board's power to direct GA to start working on some of those key issues-for formation of study groups, etc.
           • George Conrades: Why does NSI refuse to sign up as accredited registrar?
           • David Johnson: Objects to that requirement as criteria for participation in that constituency, didn't say in the meeting that they would not sign up.
           • Dennis Jennings: Willing to undertake work suggested.
           • Louie: NSI said they would not sign the registrar accreditation guidelines.
           • Becky Burr: Amendment 11 says that NSI clearly needs to be accredited following the testbed. Signing the accreditation agreement is the way to get accredited.
           • David Johnson: Question is about criteria for registrar constituency where the issue of contracts could be discussed. Why can ICANN make a registrar agree to contractual terms specified unilaterally by ICANN?
           • Conrades: "If you don't believe in the legitimacy of ICANN, you are wasting a hell of a lot of our time." "If you don't sign up to be a registrar, then you won't be."
           • Johnson: NSI does believe in the importance of building ICANN into a consensus-based standard-setting body. Problem here is constituency process that NSI opposed in Paris draft. Also faulty definition of gTLD constituency. NSI is not taking the position that it should not make any payment to ICANN. Costs should be allocated across IP and domain name registries based on cost.
           • Roberts: DNSO structure implemented based on consensus proposal from Singapore.
           • Ken Stubbs: Constituencies are to provide policy advice. No one should ask to participate in providing advice but then claim that they won't be bound by the resulting policies.
I.   WIPO Recommendations - Molly Shaffer Van Houweling
   A.   ICANN has solicited public comments on the report
       1.   Many comments received - positive, negative, equivocal
   B.   Three main chunks:
       1.   Best Practices for registrars
           • Collection of and availability of registrant contact information
           • Pre-payment
       2.   Dispute Resolution
           • Development in process by accredited registrars
           • Additional guidance welcomed
       3.   Famous names exclusions
           • No current ICANN policy process underway
           • Issues considered "urgent" by many members of Internet community
       3.   Famous names exclusions
           • No current ICANN policy process underway
           • Issues considered "urgent" by many members of Internet community
   C.   Issues closely tied to DNSO which is still in formative phase
       1.   Would like comments on how to get input from DNSO without needless delay
   D.   Q&A
       1.   Triana: Who has the burden of proof for establishing bad faith?
           • The complainant.
       2.   Triana: Re famous trademarks, distinction between famous and well-known marks? Very few countries have developed national legislation to protect famous and well-known marks.
           • Wide range of countries provide protection for famous and well-known marks but there is no uniform definition of those terms in treaties. The report contains suggested criteria. Recommended exclusions only for globally famous marks.
       3.   Skeptical at first but impressed by process.
       4.   Peter Dengate Thrush: Sees two major flaws-should reject chapters three and four. (Also speaking for Laina R. Greene.) Flaws: idea that cybersquatting is a continuing problem. It's in fact diminishing.
       5.   Jim Higgins: Received a petition signed by well-known people in the industry. Asks ICANN not to make decisions until DNSO and advisory committees are formed.
           • Roberts: The authors of the petition should have submitted substantive comments.
       6.   Why is the board only listening to one side? What happened to the independent study called for by the White Paper? Why wasn't someone other than Mr. Gury allowed to make a presentation on the other side of the issue.
           • DoC has been working with NRC to finalize the details of the study. Want to bring together technologists and representatives of the IP industry to produce better understanding of the issues involved. Want to reduce tensions between trademark holders and domain name holders. Details and funding to be finalized within the next few weeks. Study will not duplicate the work of the WIPO.
       7.   Jay Fenello: Represents Iperdome, a prospective registry (for .per). Domains to be issued for personal use only. A gTLD for WIPO purposes?
           • Gurry: One issue raised in report is possibility of non-commercial domains to which different rules might apply.
       8.   Sondow: Would like to suggest that ICANN and WIPO include clauses to protect rights of domain name holders. Many users of domain names are threatened by having their domain names taken away from them.
       9.   Jonathan Cohen: Representing organizations forming the IP constituency. IP community thinks that WIPO report should be approved quickly, especially chapters two and three. Potential disaster if new registrars come online without uniform dispute policy. Notes that there is a provision in bylaws for board action without SO input if necessary.
       10.   Ethan Katsch: Has mediated domain name disputes. Perhaps the main ongoing problem is that of threatening lawyers from IP interests to domain name registrants - thousands if not more. Need special rules for good-faith participants.
           • Report does address "reverse domain name hijacking." See last chapter. Considered a more comprehensive process but didn't see widespread support.
       11.   Marilyn Cade: Importance of reliable contact information. It's essential for dealing with consumer protection. WIPO's process was thorough and international. Propose that WIPO continue to provide expertise.
       12.   Peter Dengate Thrush: Subject to privacy concern resolution - chapter two is OK. Chapter three is now limited to "something unimportant" - cybersquatting. Cybersquatting is going to diminish and is being dealt with in court, where cybersquatters always lose. Concerned that WIPO report is biased - comes from people with a particular mindset. Demonstrated by conflation of trademarks and domain names. Exclusion process not well-defined. Other problems with ADR: will just lengthen the process (because proceedings will also go forward in court), process can be undone in court, shouldn't be mandatory. Chapter 4 should be rejected outright. Extension of gTLDs could begin without adopting ADR or exclusion.
       13.   Milton Mueller: This is the most important issue that ICANN will act on. There wasn't specific enough notice re what exactly might be adopted. See signs of bad policy-making: time crunch leads to tail wagging the dog. Lots of questions about details of the report. Important privacy issue about access to registrant contact info. "Can't make law of this magnitude on the fly." Need more time.
           • Dyson: Need to address substance, not just tell the board to act quickly or slowly.
           • Hans: Is anyone really surprised by the final report of the process?
           • Gurry: Haven't heard of any discrepancies between report and annexes. (Detail mentioned by Mueller.)
       14.   Joop Teernstra: The term "confusingly similar" seems too broad and vague - opens the door to reverse domain name hijacking.
           • Roberts: Information has been in zone files for years. We haven't invented any new requirements. Board is open to privacy concerns and specific suggestions for change.
       15.   Ted Shapiro (MPAA): Copyright perspective. Surprised to hear that everyone thinks WIPO process has gone too far since IP concerns on the Internet go much further (cyber-piracy). Need contact information (service provider identity through whois database) since this is how pirates are located. Privacy should not be a haven for pirates.
       16.   Marilyn Cade (AT&T): Commercial users should not be anonymous because those with which they do business should be able to find out who they're dealing with. Maybe non-commercial users should have anonymous space.
       17.   Kuo-Wei Wu: Need to consider small companies, educators, individuals, especially in developing countries.
           • Gurry: Conducted consultations in many regions. This is part of why WIPO advocates a cheap administrative procedure for dispute resolution of all sorts, but no consensus for that.
       18.   Dennis Jennings: DNSO process emphasizes "work not talk." Someone might take this as a work item in the hopes of resolving the question.
       19.   Peter D.: WIPO has consulted only with IP interests.
       20.   Mueller: Compulsory nature of contact information and consequences for inaccurate information is what's new about WIPO. Very complicated. Should be considered by ICANN, not just WIPO.
           • Roberts: Contact information provision were part of ICANN public comment process. No intention of copying WIPO proposal wholesale. Want views on the core substance of WIPO.
       21.   Maruyama: Publishing the whois database is the only way to show that name assignment process is correct and fair.
       22.   John Lewis (BT): Transactions on the Internet are of increasing importance. Need to move forward on these proposals.
       23.   Mike Kirk (AIPLA): Better not to have to go to court to deal with cyber-squatting. A continuing problem. Implement ADR on a trial basis. DNSO can continue next stages and evaluate the system.
       24.   Ramesh Nadarajah: Asia still working on growing its use of the Internet. Concerned about increasing the costs.
       25.   Izumi Aizu: Everyone should be concerned about making systems Y2K-compliant in time. Formed a task force in Japan and there is plenty to do. DNS root servers may be OK. No evidence yet. Some versions of BIND may not be compliant. Maybe problems with routers as well.
       26.   Amadeu Abril i Abril: (1) Encourages USG and ICANN Board not to extend limited testbed period. On policy issues, the more the merrier. (2) Please adopt the WIPO recommendations and refer to DNSO for implementations. Registrars working together on dispute resolution is great but not enough. Even a little dis-uniformity could lead to forum-shopping. Anything that is uniform is better than forum-shopping. (3) Wants comments on who is worrying about private data in a "certain database" that a company is claiming ownership of for any commercial purpose. (4) Is in favor of constituency proposals, but wants to emphasize efficiency.
       27.   Ken Stubbs: Would you be interested in finding out how testbed registrar phase is coming along? I am severely bound by NDA. It's hard to understand this when the concept of the testbed phase was open communication between the registrars and ICANN. Understands that Mr. Gomes of NSI said that one of the registrars is in a position to move forward. That wasn't the case as of 7pm last night. None was able to techically effect any transactions. Can't tell you why because of NSI. Wants more effective communication.
       28.   Esther Dyson: Is disturbed because she thought test was supposed to be for the benefit of all. Perhaps NSI could clarify that registrars are in fact allowed to talk about progress of test.
       29.   David Johnson: We wouldn't be so far behind if the registrars had been identified on the timeline in Amendment 11--December 1. Amendment 11 contemplates non-disclosure. Necessary for security. Has no doubt that it will be important to communicate results to new registrars and appropriate elements of them to the community. Appreciates point made but thinks it's unfair in context.
       30.   Esther Dyson: Security doesn't necessitate not talking about all of the issues.
       31.   David Johnson: technical details need to be protected.
       32.   Michael Roberts: Rumors are that SRS isn't working fast enough. Doesn't reveal secret data to say yes or no to that.
       33.   Ken Stubbs: Registrar technical people weren't sent the software even though they had signed the NDA.
       34.   Chuck Gomes: Two organizations have established successful contact, one of which was ready to start test evaluation today. Maybe problem is on your side.
       35.   Stubbs: problem is that I can't openly discuss this in public.
       36.   Gomes: There has been no problem with the protocol identified to date. There has been a problem, with some of the registrars, regarding the security connection--SSL. But it has worked for two registrars using two different implementations.
       37.   Stubbs: Can't discuss in public because of NDA.
       38.   Dyson: noted with extreme interest.
       39.   Siegfried Langenbach: working on technical implementation for CORE. NSI says "now it is running" every day. That's nothing new to us. NSI is telling us we can't tell ICANN what is going on.
       40.   Becky Burr: There was no requirement or expectation in Amendment 11 that the testbed registrars would be identified on Dec. 1. Requirement was identification of technical advisory group.
       41.   Ken Cukier: why not an open, IETF-style, standard for database? Will there be a difference in registry-registrar interoperation between "legacy" gTLDs and new ones?
       42.   Mike Roberts: Should have open interface specification. It's possible for NSI to protect what's on its end of the open spec. We would look carefully at this issue in context of new gTLDs.
       43.   Esther Dyson: Security and confidentiality is important, but standards of a security system should be open so that people know how to use it and can see flaws.
       44.   John Klensin: There was a requirement for a technical advisory group (with ICANN recommending members). I was one of the people picked. Received an NDA so strict that he was advised by counsel that he would no longer be able to work in his areas of expertise if he signed it. So only people who were not expert in the fields involved could serve on the committee.
       45.   Esther Dyson: online comment from Michael Froomkin. Says there is new material in the WIPO report that wasn't subject to previous comment. Question of whether annexes are consistent.
       46.   Peter Dengate Thrush: back to issue of ADR in WIPO. 171.1.II: Definition of cybersquatting, "where the holder of the DN has no rights in the DN." That's a judicial decision and the defendant in ADR will always argue they have a right to the DN. The flaw is equating a DN with a trademark. Also can't figure out dilution in ADR.
       47.   Tarek Kamel (Egypt): re geographic diversity. Working on a proposal for establishment of AfriNIC. Important to hold ICANN meeting in Africa next year (maybe Egypt?).
       48.   Esther Dyson: Africa is on our calendar for early 2000 (no specific date or country yet).
       49.   Nii Quaynor: Thinks it would be useful to learn process used to make determination of which countries fall in which regions. Have been considering this issue in conversations about AfriNIC.
       50.   Esther Dyson: Going to print out remote comments and distribute them on paper. Also posting them on website. This is the last in-person question.
       51.   Mike Kirk, AIPLA. Re ADR: key is to make resolution of issues as efficient and cost-effective as possible.
       52.   From Board:
       53.   Greg Crew: The statement of the five regions leaves lots of room for interpretation. He suggested that Middle East could be included with Africa, since Asia/Pacific is so large already. Suggested that Europe include Russia and republics.
       54.   Esther Dyson. Thanks to all. Participants, staff, Berkman Center, Board. We look forward to making this work in consultation with you. Let's continue to chat outside.